The Ability to Achieve Lost Sales as a Consideration in Damages Analyses under Different Legal Frameworks
Landslide, ABA Section of Intellectual Property Law, November/December 2018
Analysis Group Managing Principals Rebecca A. Kirk Fair and Aaron C. Yeater have published “The Ability to Achieve Lost Sales as a Consideration in Damages Analyses under Different Legal Frameworks” in the November/December issue of Landslide, the digital magazine of the American Bar Association's Section of Intellectual Property Law.
In their article, the authors highlight issues involved in determining whether a plaintiff can demonstrate the capacity and capabilities required to achieve the claimed sales at the claimed profit margins, or whether a form of relief other than lost profits is more appropriate. They contrast the legal and economic environment for intellectual property matters with other areas of the law, such as breach of contract and antitrust cases, and discuss the factors that may be considered when deciding whether to pursue lost sales.
The article was abridged and adapted from the authors' chapter “The Ability to Achieve Lost Sales as a Consideration in Damages Analyses” in the book Lost Profits Damages: Principles, Methods, and Applications, edited by Everett P. Harry III and Jeffrey H. Kinrich.